options for filing a self-sponsored petition for permanent residence kathleen grzegorek certified...

Options For Filing A Self-Sponsored Petition For Permanent Residence

Kathleen GrzegorekCertified Specialist in

Immigration & Nationality Law

© Stone Grzegorek & Gonzalez LLP, 2014

2

Terminology – Permanent Residence

• Lawful Permanent Residence (LPR) status

– “Green Card”

– Live and work in the US indefinitely

– Can also lose this status

• Abandoning residence– Staying out of the US for 6-12 month

period (with exceptions)

• Criminal convictions

– Retain citizenship of home country


3

Different Paths to Permanent Residence

• Family Relationships– Spouse, Parent, Adult Son/Daughter, Sibling

• Majority of Green Cards given in Family Category

• Investor Visas– $500,000 (Regional Center Investment Pool) to

$1,000,000 (own business) depending on investment

– Create jobs for 10 US workers– 2 year conditional residence

• Diversity Visa Program (“Lottery”)– Held every year – usually October to December

• Other (Asylum, Refugee, etc.)


4

Necessity of Planning Ahead

If you plan on staying in the United States long-term, need to plan ahead

It can take from 1.5 to 4+ years to obtain Permanent Residence depending on the preference category and your place of birtho Some nationalities such as India and China have

longer wait• We will discuss why a longer wait for certain

people later in this talk when we look at the Visa Bulletin

Can have H-1B status for 6 years, but more time is possible IF your green card application is filed before you enter the 5th year


5

Strategic Planning

Save immigration documents and build documentation for a future case

Making a “green card” foldero Copies of old passports, Forms I-20, DS-2019, etc.o University Degrees, transcripts and translations

into Englisho Biographical Documents

• Birth, marriage, divorce certificates, birth certificates of your children plus translations into English

o Documentation for Self-Sponsored Employment Preference Categories• We will discuss in detail for the remainder of this talk

Employment Based Green Card Categories

Employment Based1st Preference(EB-1)

1. Extraordinary Ability (can be self-petitioning)2. Outstanding Professor/Researcher (employer sponsored)

Employment Based2nd Preference (EB-2)

1. Advanced Degree (labor certification required—employer sponsored)2. National Interest Waiver (no labor certification required—can be self-petitioning)

Employment Based3rd Preference (EB-3)

Bachelor’s Degree“Skilled worker”


7

When Should You Consider Self-Sponsorship

If an employer is unwilling to sponsor you since the job is temporaryo Employer sponsored categories require a permanent job

offer

You do not want to be tied to the employer for a certain length of timeo It can take 1.5 or more years to process permanent

residence

The employer is new or future unstableo Can be an issue with startups

Payment of Fees – Employer unwilling to payo Some categories such as those involving labor certification

require the employer to pay legal fees


8

First Preference – Extraordinary Ability

Level of expertise indicating that the person is one of the small percentage who has arisen to the very top of the field of endeavoro Narrow the field

• Not just Astrophysicist – Astrophysicist in Cosmic Microwave Background

o Helpful to be at least a few years out from Ph.D. and not a recent graduate

Will continue work in the area of extraordinary ability

Work will substantially benefit prospectively the United States

Sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation


9

At Least 3 of the Following Categories Must Be Documented:

Receipt of major prizes or awardso Include only awards given during your professional

career, awards given while you were a student are not recognized for immigration purposes

Evidence of membership in associations that require outstanding achievemento Include associations where you are invited to be a

member or there are some distinguishing criteria for membership based on your standing in the field • Good – National Academy of Sciences• Bad – those that only require a fee for

membership or a degree IEEE, American Physical Society, etc.


10

Extraordinary Ability Criteria - Continued

Published material in professional publications written by others about your worko Citations do not count here, but, if you were quoted

and/or featured in either trade or general publications in the US or abroad

o TV interviews, other press

Evidence of your participation as a judge of the work of others o Referee on Journal Articles

• Asked you specifically – not your advisor• Other editorial work (Assistant Editor)

o Committees on grant proposalso Conference organizing committeeso Telescope Allocation committees


11


Evidence of original scientific researcho Citation Index

• Times cited• Impact factor of journal

Can also describe journal rankingo Physical Review Letters is the 9th

highest ranked journal in the field of physics and astronomy out of 210 journals

• Important articles that cited your worko Patents

• Include whether provisional, full, US or international

• Indicate if it is being applied commerciallyo Principal or Co-Principal Investigatoro Talks, particularly invited talkso Measurements such as h-factor


12

“Big Science” and Documenting Specific Scientific Contributions

Issue with both Extraordinary Ability and NIW petitions is the role of an individual within a large science project

o Explain the project, goals, budget, participants, etc.

o Describe the “Job” versus the “Role” within the project

o Describe how publication of results is handled

o JPL/NASA awards


13


Testimony from scholars or public figures regarding your contributions

• Letters from the US and abroad, academia, industry and/or government research institutions

• People with whom you have collaborated and people with whom you have no connection

• Letters do not need to be of recent date, you can gather letters now even if you won’t be filing the case for a few years

• CV of letter writer is helpful


14


Authorship of scholarly books or articles in the field

o Articles• Explain how authors are listed for

particular field

o Books or chapters in books

o Abstracts and conference proceedings given less weight


15

Second Preference – National Interest Waiver

The normal requirement of an approved labor certification may be waived if it can be demonstrated that it would be in the national interest to do soo Saves much time and allows self-sponsorship

Must have Masters or Ph.D.o A few exceptions for those with much experience

Work must be in the National Interest such as:o Improving the U.S. economyo Improving health careo Improving the environment of the U.S. and making more

productive use of natural resourceso Involving a request from an interested U.S. government

agency


16

Extensive Documentation Required

Documentation would include everything for the First Preference plus evidence that:

o Requiring a labor certification is against the national interest

o Your research is of substantial intrinsic merit• Must show your work individually is of merit

– not just a member of a group that has merit

o Your work is national in scope


17

Requiring a labor certification is against the national interest

Congress created the national interest waiver in order to address the limitations of the labor certification processo The labor certification process serves the

national interest by protecting United States jobs and preventing foreign nationals from immigrating where there is a willing, able, and minimally qualified United States worker. However:• There are foreign nationals who provide unique

and substantial benefits to an entire field of endeavor above and beyond what could reasonably be expected as part of “the job”

• Certain positions, especially those in the science and engineering fields, clearly emphasize national contributions and demand the best and most qualified applicants


18

Requiring a labor certification is contrary to the national interest because…

Time Constraints• The labor certification process is long

Demonstrate participation in the labor certification process would result in great expenditure and loss of time to train a new employee for the position who is unlikely to be familiar with the projects already being conducted

Difficult or Impossible to Quantify Skills and Experienceo Qualities that are extremely rare, due to the specialized

nature of researcho Combination of skills/experience is rare

• For example: The work requires the melding of modeling expertise, and data analysis paired with outstanding software engineering skills

Security Issueso Any special considerations such as advancing the

research is hampered by security clearance requirements


19

Substantial Intrinsic Merit

Defining substantial intrinsic merito Research that is inherently beneficial

Demonstrating your research is of substantial intrinsic merito Describe the research in detail for a general

audience• Use simple to understand graphs, photos, etc.

JPL has some stunning and breathtaking photos!

Focus on the proposed employment and not just qualifications and past worko This is particularly important with entrepreneurs


20

National in Scope

Research is of national or international impacto Not just a local problem

Fundingo Can show the backing of an interested

government agency to demonstrate national importance

Government sponsored studies regarding targeted research areas


21

What Category, Extraordinary Ability (EB-1) or National Interest Waiver (EB-2)?

Visa Backlogo If India or China national, want to file under EB-1

given significant backlog in EB-2

Timing Issueso Processing times for both categories are at least 4 –

6 months• Can premium process (an extra $1,225) an EB-1

but not an NIW

Strength of Evidenceo NIW standard is slightly lower, “some impact on the

field as a whole,” while EB-1 is “major significance to the field”


22

Applying in More Than One Category

You can apply under more than one category, the documentation is similar

If unsure, what category, or, applying in both, ask letter writers to cover both extraordinary ability and why your work is in the national interest


23

Timeline for Entire Permanent Residence Process

Form I-140 petitiono Approximately 2 weeks to 6+ months

• Add in time if a Request for Evidence (RFE) is issued

Can require a simple or complex response

Adjustment of Status o Approximately 4-6+ months

• Can file adjustment concurrently with I-140 Petition to save time

However, if I-140 is denied, then I-485 is denied


24

First Step – File I-140 Petition

Decision

o Approval

o Request for Further Evidence (RFE)• USCIS may request further documentation or

clarification on certain points before it will make a decision

o Denial• Does not bar future applications, however, it does

need to be listed on the future application You should show that there is new

documentation, new research, etc. that was not available for the first petition


25

Second Step – Adjustment of Status

Adjustment of Status

o Can also file for employment authorization document (EAD) and travel document (advance parole) for you, as well as your spouse and children

o Usually takes 4+ months

o Medical exam and potential interview can be done where you live in the US


26

Variables in Processing Times

Visa Bulletin – Visa Quota System

Security Clearances and Background Checks

Family Situations

USCIS dependent variableso Depending on numerous outside factors such

as legislation, USCIS workloads, etc. case processing times can vary


27

Approval/Denial Rates

Approval Rates for I-140 Petitions in the Extraordinary Ability Category is 62% (most recent year available)o The numbers include cases that aren’t comparable

such as cases in business, arts, etc.

If your case is weako Wait until you have more experience, research

results, etc.o Find an employer

• Generally, an employer sponsored petition would have a better chance of success than a self-sponsored petition because of lower standard (extraordinary ability v. outstanding researcher that has a 91% approval rate)


28

Family Situation

Spouse and unmarried children under 21 years are included in your case

o However, if you marry after receiving permanent residence, wait list for spouse is approximately 2+ years

Same sex spouses now allowed to obtain permanent residence through spouse


29

Entrepreneurs

No “entrepreneur” category of immigration

No neat fit in law for entrepreneurs; perception is that administration of immigration laws is in hands of enforcement first bureaucracy, and advancement of entrepreneurship is not a priority

Insufficient immigrant visa allocation causes severe backlog and leads to “Brain Drain”o Likely only a small number in backlog would

qualify for an entrepreneur visa


30

Potential Legislation Targeted at Entrepreneurs - Elements

“Qualified entrepreneur”o Has a significant ownership interest in a US businesso Senior executive position in a US businesso Had a substantial role as founder or in development of

the businesso Presents a business plan with the petition

Past 2 years in non-immigrant status

Business created specific number of jobs (4-5), and

Validation investment of a specific amount ($500,000) or business had a specific revenue past 2 years)


31

How Much Does it Cost?

Immigration attorneys charge either on a fixed fee basis or based on the amount of time spent on the case

Balance costs against the reputation of the law firm and its track record

Many employers will pay immigration fees or part of the fees

Government Filing Feeso I-140 Petition $580

• Additional $1,225 for premium processing (EB-1)

o I-485 Application $1,070


32

Questions

Disclaimer:This presentation is for general education purposes onlyand is not intended as legal advice. Questions about specificimmigration matters should be presented in confidence to aqualified immigration attorney.